Tennessee Billboard Law Ruled Unconstitutional

A 45-year-old, outdoor-advertising act in Tennessee has been declared unconstitutional by a Memphis district judge, because of content-neutrality issues. An April 3, 2017 article in U. S. Today states, “U.S. District Judge Jon P. McCalla said the 1972 law ‘does not survive First Amendment scrutiny’ because it bans some forms of commercial and non-commercial speech based on content.” McCalla cited the 2015 Reed v. Gilbert SCOTUS decision in his ruling.

The article also states, “Thomas’ suit attracted allies among limited-government groups such as The Beacon Center of Tennessee, which say that billboard laws, by allowing regulatory exemptions for certain types of messages, impose undue ‘content-based’ regulation of speech.”

To read the entire article, go to: http://www.commercialappeal.com/story/news/courts/2017/04/03/memphis-judge-throws-out-state-billboard-act/99984504/

Reed v. Gilbert Session at APA Convention Attracts 500 People

The following article was written by FASI Board Member Alan Weinstein, who participated in the American Planning Association session.

The American Planning Association (APA) recently announced attendance figures for sessions at its annual National Conference held this past April in Phoenix, Arizona.  The session that focused on the Supreme Court’s June 2015 ruling on sign regulations, Reed v. Town of Gilbert, AZ.  organized by ISA’s James Carpentier, ranked #4 in attendance out of 170 sessions, and drew nearly 500 attendees.

James worked with the APA Arizona Chapter Host Committee to have the session proposal submitted on behalf of the Host Committee, which helped to ensure the session would be accepted.  The session, which James moderated, featured four speakers:

  • Mark White Esq., Principal in White & Smith, LLC, a law firm in Lee’s Summit, Missouri;

  • Wendy Moeller, Principal in Compass Point Planning, a planning consulting firm in Blue Ash, Ohio;

  • Professor Alan C. Weinstein, a member of the FASI Board, holds a joint appointment in the Cleveland-Marshall College of Law and Maxine Goodman Levin College of Urban Affairs at Cleveland State University in Cleveland, Ohio;

  • and Karen Melby, Senior Planner for the City of Sparks, Nevada.

White led off the session with a review of the factual background of the Reed case and an analysis of the legal rules established by the case. He focused on Justice Thomas’ majority opinion that established that any regulation which, on its face, requires that government consider the content of a sign in order to determine its regulatory treatment, is content-based.

Next, Weinstein, who also serves on the Board of the Academic Advisory Council for Signage Research & Education, discussed how courts have been applying the Reed decision in challenges to sign regulations. Professor Weinstein noted that, after Reed, some courts have struck down, as content-based, regulations that had been found to be content-neutral before Reed.  He also noted that no court had yet applied Reed to regulations of commercial signs and, while most courts had ruled that Reed did not apply to regulations that distinguished between on-site and off-site signs, one federal district court had found such a regulation to be content-based under Reed.

Moeller, who also serves as a Trustee for The Signage Foundation, next discussed how local governments can revise their regulation of temporary, non-commercial signs to come into compliance with Reed. This is precisely the type of sign at issue in Reed, so, unquestionably, the case calls into doubt any content-based regulation of such signs. Moeller’s advice on this issue can be found in a recent APA publication she co-authored with Professor Weinstein: “Practice: Temporary Signs,” in the February 2016 issue of Zoning Practice.

The final speaker, Melby, discussed how the City of Sparks, Nevada, had recently adopted a content-neutral sign code. Her remarks focused not only on what the code contained, but also on the process the city had used to bring stakeholders together to reach consensus on the content-neutral approach.

What are Some Recommendations for Regulating Temporary Signage?

Writing sign codes can be challenging for city planners and administrators who have had no formal training abut the nuances of on-premise signage. But a sub-category of this task, writing regulations specifically for temporary signage, presents an even more perplexing problem.

Wendy Moeller, a Cincinnati, Ohio-based planner (AICP), who recently served as president of the Ohio chapter of the American Planning Association, wrote a treatise of recommendations for temporary signage for the research-oriented Signage Foundation, for which she also serves as a board member. The full report, which includes assessments as to how temporary-signage regulations have and will change in lieu of the landmark Reed v. Gilbert SCOTUS case decided in July 2015, can be read at http://www.thesignagefoundation.org/Portals/0/SFI%20Analysis_State%20of%20Sign%20Codes%20After%20Reed.pdf.

Is Your Sign Code Content Neutral? Reed v. Gilbert Warns that it Should Be.

Quite often, sign codes are primarily governed by their definitions. Many of the definitions are about types of signs: temporary, projecting, banners, fascia, freestanding, pole-mounted, etc. Quite often, however, signs are defined by their contentpolitical, real estate, commercial, yard sale, etc. If a sign is blank, you can still tell what kind of sign it is by the first grouping. However, for the second group of signs, you can only tell which type of sign it is by reading it.

This presents a problem if one group is given preferential treatment over another group. This concept is called content neutrality, and courts historically have been inconsistent in their rulings. However, that all changed on June 18, 2015, when the Supreme Court of the United States (SCOTUS) ruled unanimously in favor of content neutrality in Reed vs. Gilbert. Based on that ruling, a vast majority of existing sign codes, if challenged, would be ruled unconstitutional.

Clyde Reed’s church in Gilbert, AZ didn’t have a permanent home, so it needed to announce its location and topic each week on a sign. The Gilbert sign code deemed it a “temporary directional sign” and limited its size to 6 sq. ft., and a duration of 12 hours before the service, and one hour afterward. In contrast, “political signs” could be 32 sq. ft., and their duration was only limited to the election season.  A third category – “ideological signs” – which was a catch-all category, could be 20 sq. ft., with no time or placement restrictions.

For a city to enact content-based restrictions, it must employ “strict scrutiny,” which means it must demonstrate a “compelling interest,” and show that the restrictions are “narrowly tailored” to serve that interest.

Reed was originally cited for exceeding the time limits with his signs. He filed against these rulings and, amazingly, multiple appellate courts upheld the Gilbert sign code.

Justice Clarence Thomas, in delivering the opinion of the Court,  succinctly stated, “We hold that these provisions are content-based regulations of speech that cannot survive strict scrutiny. . . The Town’s Sign Code is content based on its face . . . The restrictions in the Sign Code that apply to any given sign thus depend entirely on the communicative content of the sign. . .”

In another landmark SCOTUS case in 1999, North Olmsted Chamber of Commerce v. City of North Olmsted, the city’s 1991 sign code was found to not be content neutral, along with the sign code en toto (entirely), so all of the sign code’s prohibitions were thrown out. An overview of that court case also appears in this website’s Sign Code section.

Read More: Here & Here.